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Copyright and Fair Use at XJTLU Library

Copyright -- Basic

Copyright can be defined as the exclusive and assignable legal right entitled to the copyright owner for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material. Anything that is written, printed, recorded or produced in any forms is subject to copyright. Copyright covers printed and electronic material, illustrations, films, recorded music, computer software and all the other intellectual property.

According to the copyright regulations in China, copyright is a mixed type of legal right combining personal rights and property rights. It is not fixed but developing with the advancement of the society. 

Copyright provides protection for a material for a specific period of time. The material is considered to be open content beyond this specific time period.

According to the Copyright Law of the People’s Republic of China,

  1. The term of protection of the rights of authorship, alteration, and integrity of an author shall be unlimited.
  2. The term of protection of the right of publication, the right of exploitation and the right to remuneration in respect of a work of a citizen shall be the life time of the author and fifty years after his death, expiring on December 31 of the fiftieth year after his death. In the case of a work of joint authorship, such term shall expire on December 31 of the fiftieth year after the death of the last surviving author.
  3. The term of protection of the right of publication, the right of exploitation and the right to remuneration in respect of a work where the copyright belongs to a legal person or entity without legal personality, or in respect of a work created in the course of employment where the legal person or entity without legal personality enjoys the copyright (except the right of authorship), shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such work, provided that any such work that has not been published within fifty years after the completion of its creation shall no longer be protected under the Law.
  4. The term of protection of the right of publication, the right of exploitation and the right to remuneration in respect of a cinematographic, television, video-graphic or photographic work shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such work, provided that any such work that has not been published within fifty years after the completion of its creation shall no longer be protected under the Law.

Under certain conditions, it is permitted to copy the copyright materials for private study or research purposes. This kind of permission is referred to as ‘fair use’ or ‘fair dealing’. According to the Copyright Law of the People's Republic of China, the following four terms and conditions must be satisfied simultaneously when copying works of others under fair use:

  1. The work must be published. Published works refer to those works that have been made public by the copyright owners themselves or other persons under license. The copying of unpublished works is usually not considered as fair use.
  2. The copying aims at private study, teaching, research, religious affairs, philanthropy or meeting the public cultural needs, and has no commercial purposes.
  3. The full names of the work and author must be cited if the work is going to be copied or used, except when both parties have reached a special agreement or the work owns particularity which cannot be indicated.
  4. The normal use of the work shall not be affected, nor shall the legitimate rights of the copyright owner be unreasonably damaged.

Unfortunately, it becomes less clear when it comes to the amount and substantiality of the portion of the copyrighted work used and the effect of use on the potential market for the copyrighted work. Generally speaking, it is LESS likely to be considered as fair use if you:

•    use a large portion of a copyrighted work
•    use the ‘heart’ of a copyrighted work
•    repeatedly use something under fair use when you should seek permissions
•    create a new work which is similar to the original work and/or appeals to the same audience as the original

 

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